Lawmakers, officials and industry leaders increasingly believe Congress will be forced to resolve the FBI’s controversial bid to compel Apple to help unlock the iPhone of one of the San Bernardino shooters.
“This case has much broader policy implications, which is why ultimately the court decision won’t decide this issue,” Rep. Adam SchiffAdam Bennett SchiffJan. 6 panel subpoenas four ex-Trump aides Bannon, Meadows Schiff: Criminal contempt charges possible for noncooperation in Jan. 6 probe The Hill's Morning Report - Presented by Alibaba - Biden jumps into frenzied Dem spending talks MORE (D-Calif.), ranking member of the House Intelligence Committee, told CNN Thursday. “Ultimately, it’s going to fall on us in Congress to try to draw the line, in terms of what the technology sector must or must not do.”
“The parties have to find common ground, and Congress needs to write it into law,” Rep. Patrick Meehan (R-Pa.) wrote in a Wednesday op-ed.
Apple is also arguing Congress should decide whether it should comply with a court order demanding that it disable certain key security features on shooter Syed Rizwan Farook’s iPhone 5c.
But the push comes from supporters of both Apple and the FBI. And despite the groundswell of support for action, it’s not at all clear what legislation — if any — lawmakers would unite behind.
“This is a huge issue which is very complex. It should not be decided by a single district judge in California, it should be decided right here,” Sen. Angus KingAngus KingOvernight Energy & Environment — League of Conservation Voters — Climate summit chief says US needs to 'show progress' on environment Manchin, Barrasso announce bill to revegetate forests after devastating fires Rep. Tim Ryan becomes latest COVID-19 breakthrough case in Congress MORE (I-Maine) told The Hill. But, he added, “I don’t think we’re ready to articulate” what legislation is needed.
“This is an interesting challenge to the balance that we've always had in our country since our founding, the balance between security and liberty,” House Minority Leader Nancy Pelosi (D-Calif.) said Thursday.
There are several competing bills involving encryption standards circulating both chambers, including one from Sens. Richard BurrRichard Mauze BurrThe Hill's Morning Report - Presented by Alibaba - Biden jumps into frenzied Dem spending talks GOP senators say Biden COVID-19 strategy has 'exacerbated vaccine hesitancy' Senate advances Biden consumer bureau pick after panel logjam MORE (R-N.C.) and Dianne FeinsteinDianne Emiel FeinsteinFederal watchdog calls on Congress, Energy Dept. to overhaul nuclear waste storage process Senate advances Biden consumer bureau pick after panel logjam Republicans caught in California's recall trap MORE (D-Calif.) that would require companies to unlock phones under court order.
That bill has faced fierce pushback from the tech community — and some key national security leaders on Capitol Hill — who argue such access would force companies to build vulnerabilities into their systems that malicious hackers would be able to exploit.
A more modest proposal from Rep. Michael McCaul (R-Texas) and Sen. Mark WarnerMark Robert WarnerPanic begins to creep into Democratic talks on Biden agenda Democrats surprised, caught off guard by 'framework' deal Schumer announces Senate-House deal on tax 'framework' for .5T package MORE (D-Va.), set to drop next week, has arguably drawn the most support. The bill would establish a commission to study how police might be able to access encrypted data without endangering Americans’ privacy.
The bill’s backers have been bullish on its prospects, even going so far as to suggest it will get White House support. The administration has been mostly mum on the subject of encryption since backing away from supporting any legislative proposal last fall — although it is expected to announce an updated policy in light of the terrorist attacks in San Bernardino, Calif., and Paris.
Rep. Jim Langevin (D-R.I.), who co-chairs the Congressional Cybersecurity Caucus with McCaul, would like to see the White House back the compromise proposal.
“I think a commission at this point could be helpful in making sure that all the stakeholders have a seat at the table,” Langevin told The Hill earlier this year. “Maybe not everyone’s going to be 100 percent happy, but I know the status quo is not acceptable.”
The “status quo” is a stand-off that has become increasingly toxic as privacy advocates and technologists have dug in and the FBI has tried to counter with a variety of different positions that have the same practical implication: access to locked devices during investigations.
The agency gained supporters in the wake of the attacks in Paris and San Bernardino — when various reports stoked fears that the attackers had escaped surveillance by using encryption — but some of that support fizzled as lawmakers began to grasp the complexity of the issue.
At least part of the push for congressional action appears to come from supporters of Apple who believe that legislation backing up the FBI’s position in the case is a nonstarter.
“The administration should decide what it wants the law to be and ask Congress for a new law, but the FBI doesn’t want to do that, first of all because they can’t get the White House to approve it, and secondly if they could, it’s not clear they could get it through Congress,” former White House counterterrorism and cybersecurity chief Richard Clarke told The Hill.
Last year, FBI Director James Comey made repeated calls for legislation outlawing unbreakable encryption that were ultimately rebuffed by both lawmakers and the White House — and Comey has publicly admitted it wasn’t a feasible stance.
But now some lawmakers cite that history as evidence the FBI is using the court order to try to force de facto policy changes that it was unable to persuade Congress to legislate.
“Absolutely,” Rep. Ted Lieu (D-Calif.) said when asked if the move was a way for the agency to get around its failure to effectively lobby lawmakers.
“The government is really seeking to push the courts to do what they haven't been able to persuade Congress to do,” Theodore Boutrous Jr., one of Apple’s lead attorneys, said this week. “That's to give it more broad, sweeping authority to help the Department of Justice hack into devices, to have a back door into devices, and the law simply does not provide that authority.”
Meanwhile, as Congress wrangles over whether and how to act, Apple is racing to develop stiffer security measures that would render moot a court decision in favor of the FBI. Some policy analysts have described the situation as an “arms race” that can only be halted by congressional action.
Comey on Thursday seemed to obliquely hint that he still believes Congress should step in, testifying that he “has been very keen to keep the Bureau out of the policy-making business.”
But many believe the issue is too toxic to gain any traction in an election year.
“It is this body that should be determining the answer to the questions that you ask and that will be resolved in the judiciary,” Rep. Jim Himes (D-Conn.) said during Comey’s testimony before the House Intelligence Committee Thursday.
“And of course we will once again shirk our constitutional duty, as we have on an authorization for use of military force, as we are preparing to do with respect to advise and consent on a Supreme Court nominee, and we will again on this issue — which is sad.”
Cory Bennett contributed.